IN THE SUPREME COURT OF SAMOA
Police v Niusila [2024] WSSC 78 (06 September 2024)

Case name: 	Police v Niusila	
		
Citation: 	[2024] WSSC 78	
		
Decision date: 	06 September 2024	
		
Parties: 	POLICE (Informant) v ATAPANA NIUSILA (Defendant/Applicant) 	
		
Hearing date(s): 		
		
File number(s): 		
		
Jurisdiction: 	Supreme Court – CRIMINAL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Niavā Mata K. Tuatagaloa	
		
On appeal from:		
		
Order:	The application pursuant to section 136(4) of Criminal Procedure Act 2016 is dismissed.	
		
Representation: 	I. Atoa for Prosecution 
I. Sapolu for the Defendant	
		
Catchwords: 	Sexual violation – indecent assault – assessor trial - 	
		
Words and phrases:	“Application to reverse assessors guilty verdict” 	
		
Legislation cited:	Crimes Act 2013, ss. 49(1); 52(2);
Criminal Procedure Act 2016, ss. 21(1); 136; 136(4); 136(4)(a);  180(1)(a). 	
		
Cases cited:	Chea v R [2016] NZCA 207;
Police v Niusila [2024] WSSC 71;
Police v TB [2022] WSSC 12;
Samuelu v Attorney General [2020] WSCA 1.	
		
Summary of decision:		

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

ATAPANA NIUSILA

Defendant/Applicant

Counsel:	I. Atoa for Prosecution
		I. Sapolu for the Defendant 
Verdict:	28 February 2024
Submissions:	31 July 2024	
Ruling:	6 September 2024	

RULING ON ASSESSOR’S VERDICT OF GUILTY
(Application by defence counsel pursuant to section 136(4) of Criminal Procedure Act 2016)
Introduction
1. 	The defendant was tried before Assessors in a three (3) day trial from 26-28 February 2024 on the following charges:
(i) 	One (x1) charge of Sexual violation contrary to sections 49(1) and 52(2) Crimes Act 2013 with the maximum penalty of life imprisonment.
	“That at Satapuala on or between 1st and 30th April 2021, the above-named defendant of Satapuala and Faletagaloa, Savaii, sexually violated Anarosa Siaki Tavita, a female of Satapuala by raping her.”
(ii) 	Two (x2) charges of Indecent Assault contrary to section 60 Crimes Act 2013 with the maximum penalty of seven (7) years imprisonment.
	“That at Satapuala on or between 1st and 30th April 2021, the above-named defendant of Satapuala and Faletagaloa, Savaii, indecently assaulted Anarosa Siaki Tavita, a female of Satapuala by touching her breasts.”
	“That at Satapuala on or between 1st and 30th April 2021, the above-named defendant of Satapuala and Faletagaloa, Savaii, indecently assaulted Anarosa Siaki Tavita, a female of Satapuala by touching her genitalia area.”
2. 	By consent of both parties, the evidence relating to all charges were heard together.
3. 	Pursuant to section 21(1) Criminal Procedure Act 2016, the charge of sexual violation was before the Assessors for determination whilst the two (2) charges of indecent assault are judge alone charges and were before me, the Presiding Judge.
4. 	The Assessors unanimously found the defendant guilty of the charge of sexual violation, whilst I found the defendant ‘not guilty’ on the two (2) charges of indecent assault. 
5. 	The defendant now applies under s.136(4) Criminal Procedure Act 2016 to reverse or veto the Assessors unanimous verdict.
6. 	The Prosecution for the Informant opposes the application.
The ground(s) of the application
7. 	The application to acquit the defendant after he was found guilty by unanimous verdict of the assessors are:
(i) 	That the verdict was unreasonable and/or cannot be supported having regard to the evidence that was heard;
(ii) 	That the defendant ought to be acquitted pursuant to section 136(4)(a) of the Criminal Procedure Act 2016 (“the Act”);
(iii) 	That the Honorable Trial Judge is understood to have a duty to form an opinion, as outlined in s.136 of the Act, to acquit the defendant if the verdict is ‘guilty’ and if in the Judge’s opinion, the assessors’ verdict is unreasonable or cannot be supported having regard to the evidence.
The relevant principles
8. 	Section 136(4) provides:
	“If the presiding Judge is of the opinion that the assessors’ verdict is unreasonable or cannot be supported having regard to the evidence, the presiding Judge may: (a) acquit the defendant if the verdict is guilty; or (b) order a new trial if the verdict is not guilty.” 
	(my emphasis)
9. 	Section 180(1)(a) Criminal Procedure Act 2016 also refers to the phrase “unreasonable or cannot be supported having regard to the evidence” as one of the possible grounds of appeal against the verdict of assessors. The Court of Appeal in Samuelu v Attorney General  refers to this phrase in section 180(1)(a) and stated the following: 
(i) 	That a verdict is unreasonable only if, having regard to all the evidence, reasonable assessors could not have been satisfied beyond reasonable doubt that the defendant is guilty;
(ii) 	A verdict cannot be challenged on the ground that it was insupportable on the evidence if there was creditable evidence capable of supporting a finding of guilt;
(iii) 	The Court of Appeal will only intervene only if reasonable assessors ought to have entertained a reasonable doubt as to the guilt of the appellant;
(iv) 	It is not enough to simply disagree with the assessors’ verdict.
10. 	The principles set by the Court of Appeal in Samuelu in relation to s180(1)(a) follows the New Zealand Court of Appeal case of Chea v R as follows:
	“...The Court must perform a review function and cannot just substitute its own view of the evidence. The Court will not lightly interfere with the verdict and will only allow an appeal where satisfied that no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the evidence.”
11. 	Furthermore, their Honours in Samuelu jointly ruled that the same principles also apply when considering s136(4): (at [22])
	“In [these] circumstances it could not be said that the verdict of the assessors was unreasonable or unsupported by available evidence. The same applies to the decision of the Judge not to interfere with assessors’ verdict in the exercise of her power to do so under s.136(4) of the Criminal Procedure Act 2016.”
12. 	I agree with Clarke J’s observation in Police v TB where he refers to the difference between the Supreme Court review function under s136(4) and that of the Court of Appeal under s180 of CPA:
	“…A key difference however between the review function of the Supreme Court under section 136(4) of CPA 20116 and the Court of Appeal is that the presiding judge in the Supreme Court shares the advantage enjoyed by the assessors of seeing and hearing the witnesses in person. Despite this however, the presiding Judge must not lightly intervene nor supplant the role of assessors as the body charged with findings of fact, unless the presiding Judge can be satisfied that the verdict reached by the assessors is unreasonable.”
The evidence at trial
Background
13. 	The defendant is the husband of the victim’s aunt (father’s sister). The defendant and his wife operate a couple of fishing boats where the catch is usually sold at the fish market. 
Prosecution evidence
14. 	The allegation of rape before the assessors is that it took place while the victim was living with the defendant and his family in April 2021. The Prosecution called seven (7) prosecution witnesses: Anarosa Siaki (victim), Ela Fualaau (aunty), Tala Popo (Ela’s daughter), Siaki Tavita (victim’s father), Levaula Tavita (victim’s mother), Corporal Hanania Lene (Investigating Officer) and Sergeant Leativalu Neemia (Forensic – Photos). 
15. 	The victim’s evidence is that in the latter part of 2020, the defendant’s daughter Usuese asked her parents if she (victim) could come and sleep with her at their house to help her with her studies and for company, to have another female at home with her. The victim ended up staying with the defendant and his family for the rest of 2020 until after the first quarter of the school year in 2021. The victim’s mother Levaula Tavita under cross examination maintained that the victim stayed with the defendant and his family in the latter part of 2020 until after the first quarter of the school year in 2021 when she returned back to them. Ela Fualau’s evidence is that Anarosa stayed with the defendant and his family from 2020 until sometime in 2022. The victim’s father, Siaki Tavita, was not sure how long Anarosa stayed with Atapana but said that she stayed with them for a long time and that she finished school in 2021. 
16. 	The victim said the defendant raped her when her aunt and their older sons had left sometime Saturday night and early Sunday morning to go to the fish market in Apia to sell their fish leaving only her and the defendant at home. Usuese, the defendant’s daughter, said she spent the weekend away at other family and was not at home. The victim said she was sleeping on the bed in Usuese’s bedroom when she woke up to find the defendant touching her right breast inside her t-shirt. She was sleeping in only a t-shirt and panties. The defendant was standing next to the bed wearing a lavalava. The victim told him to stop and asked him what is he doing to her but he told the victim not to make any noise. The victim said that the defendant got on to the bed, she tried to get up but the defendant pushed her down, removed her panties and raped her.  She said that she felt pain as if ‘something was torn’ when he inserted his penis into her vagina. The victim told her aunt Ela Fualaau, her daughter Tala Popoand her father Siaki Tavita. 
17. 	The victim did a Facebook post on 30 October 2022 referring to something bad the defendant did to her. This resulted in the victim telling her aunt Ela Fualaau, her daughter Tala Popoand her father Siaki Tavita that the defendant raped her some eighteen (18) months after it happened. The victim said on the same day she told her father that she went with her father to the Faleolo Police Post and lodged a complaint. The victim’s parents Siaki and Levaula Tavita gave evidence that the defendant and his wife apologised twice for what happened.
Defence evidence
18. 	The defence case is that the victim was no longer living with the defendant and his family in 2021; therefore, what the victim alleged to have happened could not have happened. In other words, there was no sexual intercourse between the defendant and the victim, therefore, no sexual violation took place. The defendant elected not to give evidence but two witnesses were called to give evidence – his daughter, Usuese Atapana and Telesia Tiaina (defendant’s niece). 
19. 	The evidence of Usuese Atapana and Telesia Tiainawas that, the victim was no longer staying with the defendant and his family in 2021. The evidence of Usuese is that the victim stayed with them in 2020 but she returned to her parents’ half way through 2020. Usuese also gave evidence that her and the victim had never slept in the open part of the house, but she and the victim always slept in the bedroom. Usuese also said that she had never spent a night away from home.
20. 	The defendant’s niece Telesia said that she stayed with the defendant and his family at the beginning of the school year in 2021 till the end of 2021 when she returned to her parents. Her evidence is that, the victim was no longer staying or living with the defendant and his family at the time. Telesia attended the same District College as the victim in 2021. She was asked about the school year and said that the school has 4 terms and the first term starts from February for 10 weeks till about the second or third week of April. 
Discussion
21. 	The question is whether the verdict by the Assessors of ‘guilty’ is unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the defendant was guilty. 
22. 	I remind myself of the following:	
(a) 	That the verdict of Assessors cannot be challenged or vetoed if there is creditable evidence capable of supporting a finding of guilty;
(b) 	It is not enough for me to simply disagree with their verdict; that reasonable minds may differ on matters of facts;
(c) 	That my function is one of ‘review’ of the evidence and cannot just substitute my own view of the evidence; and
(d) 	I should not interfere with the verdict of the Assessors in the exercise of my power to do so under section 136(4) where in the circumstances of the offending, it could not be said that the verdict of the Assessors was unreasonable or unsupported by available evidence.
23. 	I must also remember that the Assessors are the finders of facts. Unlike an appeal, the Assessors had the opportunity to see and hear the witnesses’ evidence and therefore are better placed when they assess the credibility of each witness.
24. 	Crucial to the defence raised is whether the victim was staying with the defendant and his family in April 2021 where the allegation of rape is said to have taken place. The defendant’s daughter, Usuese Atapana did not dispute that the victim stayed with their family. What is in dispute is the time frame or period that the victim stayed or lived with the defendant and his family. 
25. 	There was the evidence of the victim and her mother of the time frame the victim had stayed with the defendant and his family from the latter part of 2020 till after the first quarter of the school year in 2021. The evidence of Telesia Tiaina (defendant’s niece) supports the evidence of the victim that she (victim) left the defendant’s family after the first quarter of the school year in 2021. 
26. 	There was evidence before the Assessors from which they could draw inferences and make findings of fact, including in relation to findings of fact where there are any inconsistencies in the victim’s evidence.
27. 	The law no longer needs corroborative evidence in sexual offending. The Assessors (or Judge alone) can on the evidence of the victim alone find the defendant guilty. In the present matter, it was open to the Assessors to believe the evidence of the victim despite only telling her aunt, cousin and father eighteen (18) months after it happened.
28. 	Counsel for the defendant/applicant distinguished the exercise of judicial discretion pursuant to section 136(4) exercised by Clarke J in the case of TB from the present in that TB only the assessors were the finders of facts, that is, there were no lesser charges as opposed to the present case where there were also lesser charges which were to be decided by the Judge. That is, with the present case both the Assessors and the Judge were finders of facts. I agree.
29. 	I, as Judge alone was the finder of facts for the lesser charges (x2) of indecent assault of the same victim against the defendant and although I find the charges not proven beyond reasonable doubt, I made the following finding of fact at [14]:
	“I find that the victim was staying with the defendant and his family from the latter part of 2020 until about May 2021 when she left and returned to her parents…” 
This means that the victim was staying or living with the defendant and his family at the time she was raped.
30. 	There is evidence to support each element of the offence that the Assessors returned a guilty verdict on. Having regard to the evidence before the Assessors, the verdict reached by the Assessors were open to them and the verdict therefore reasonable.
Conclusion
31. 	The application pursuant to section 136(4) of Criminal Procedure Act 2016 is dismissed.
JUSTICE TUATAGALOA